Hospital liable to nurses disciplined for complaining

08.05.15

A hospital recently was ordered to reinstate a nurse with back pay and benefits, to promote and provide back pay to a second, and to rescind discipline metered out to a third who had complained in concert with others about various working conditions. The decision, made by the United States Court of Appeals for the District of Columbia, upheld a decision by the National Labor Relations Board in favor of the three nurses.

None of the three nurses were members of a labor union. The provision of the National Labor Relations Act at issue protects both union and non-union employees. It prohibits retaliation against employees for engaging in communication and action for their mutual aid and protection to improve the terms or conditions of employment or better their working conditions.

The first nurse, Donna Miller had joined with four other nurses to send an email to management personnel expressing concerns about the hospital’s Nursing Fellows program. The employer argued that the email was about the fellowship program and the nurses were not fellows, so it did not deal with their working conditions. But one aspect of the email specifically asked for a one-week break between fellow rotations, something that did affect the working condition of the nurses.

The email “enraged” a manager, who communicated that she was “furious” with Miller. Other nurses had previously complained about Miller, and Human Resources conducted an investigation into those other allegations. The investigation was irregular and one-sided. Human Resources refused to interview people that Miller had suggested, and rebuffed a couple of doctors asking to discuss their support of Miller.

The hospital suspended Miller during the investigation and ordered her not to speak with anyone except her husband about the investigation. It then fired Miller. The Court upheld the Board’s holding that the order not to discuss her suspension and investigation violated the Act because it prohibited her from communicating with other employees for her mutual aid and protection, and held that the hospital retaliated against her for the email, which it held was concerted action with the other nurses. The hospital was ordered to reinstate Miller with back pay and benefits.

During the Miller investigation, Judy Giordano, along with six other nurses, went to Human Resources to express their support for Miller. As they walked down the hallway, Giordano touched the shoulder of a member of management to get her attention. Although the physical contact was mild, as confirmed by video monitoring, the final written warning issued to Giordano cited her for “inappropriate physical and verbal behavior.” The Court affirmed the Board’s decision that Giordano conduct was not “opprobrious,” so she did not loose her statutory protection. The Hospital was ordered to withdraw the discipline and remove all references to it from her personnel record.

Nurse Kathy Gamble’s situation was not related to the other two. Gamble had applied for a promotion. After doing so, she had a conversation with a colleague who had volunteered to stay late for an after-hours surgery. Gamble suggested to her colleague that doing so set a bad precedent, because in the future management would expect the ambulatory surgery center nurses to stay late to help with surgeries which should be scheduled for the main operating room.

A few months later, all of the nurses who had applied for the position sought by Gamble were promoted, except for Gamble. Management personnel admitted that one reason she was not promoted was because of the discussion with her co-worker about not volunteering for after-hours surgery.

The Board rejected the hospital’s argument that Gamble’s comments were encouragement of an unprotected strike, and the Court agreed, explaining that the refusal to perform voluntary work is not a strike. The hospital’s other reasons were rejected as pretext, and the hospital was ordered to promote Gamble with full seniority and back pay.

This case is yet another reminder that it is unlawful for employers to retaliate against employees, whether union or non-union, for communicating with one another or taking action with other employees to improve their working conditions, pay or benefits. It also is a reminder that an employer cannot prohibit employees from discussing working conditions, which includes discipline or disciplinary investigations unless the interest of the employee are outweighed by the employer’s valid confidentiality interest.